UD126/2014, MN55/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Madara Cebina – claimant                                                                                        UD126/2014

                                    MN55/2014

Against

Xl Fuels Group Limited – respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr R.  Maguire BL

Members:       Mr M.  Carr

Mr P.  Trehy

heard this claim at Trim on 19th March 2015

Representation:

_______________

Claimant(s):               Ms Denise Cassidy

Solicitor, Main Street, Virginia, Co Cavan

Respondent(s):           Mr Michael Ryan

Dunne Ryan & Co., Solicitors, Athbara House, Cavan

The determination of the Tribunal was as follows:-

Dismissal was in dispute.  The claimant, a Latvian national, was employed in the deli/shop of the respondent’s service station.  She was employed from June 2010 until October 2013.  The respondent contended that she requested her P45 and left of her own accord. 

Summary of Claimant’s Case:

The claimant worked her shift on Saturday 26^th October 2013.  Before she left she put two spoonfuls of oven cleaner from the tub used in store into a takeaway cup which she brought home with her.  She did not ask permission to take it and neither did she attempt to conceal it from people around her, including the owner’s brother.  She took a lift home with her supervisor and told her what was in the cup.  A short time later her supervisor phoned and said that the owner wanted to know what she had in the cup. 

She then received a phone call from MS, an admin assistant, who said the claimant should not report for work.  The claimant asked if MS meant the following day or forever; MS confirmed forever.  The claimant asked if it was because of the oven cleaner and after a pause MS agreed that it was.  The claimant offered to pay for the cleaner.  She was very shocked.

The claimant then phoned her supervisor and asked about her P45 and wages and was told she would have to wait until Tuesday, Monday being a public holiday.  She tried to phone the owner but he did not answer and later his phone was switched off.  On Tuesday she rang DC the office administrator to ask when her P45 would be ready.  It was ready for her later that day so she collected it together with her outstanding holidays and wages from her supervisor and went to the Social Protection office. 

The claimant was cross-examined.  It was put to her that in 2011 she sold yogurts at a reduced rate to a colleague and was reprimanded for doing so.  The claimant agreed that the owner was unhappy on that occasion and she asked him if he was dismissing her.  He said he would think about it and the next day he said she could stay.  She had sold yogurts which were about to go out of date to a colleague at a reduced rate.  She did not receive any warning in writing. 

She disputed that during the phone call with MS on 26^th October 2013 that she was invited to a meeting with DC on the following Tuesday. 

A colleague of the claimant’s gave evidence that she was asked to cover the shift on Sunday which the claimant was taken off.  She saw that the claimant’s name was not on the roster for the following week.  She rang the claimant who told her she had been dismissed.  No one said anything about the claimant in the workplace. 

Summary of Respondent’s Case:

The claimant’s supervisor gave evidence that she and her partner gave the claimant a lift home after work on Saturday 26^th October 2013.  The claimant had a coffee cup in her hand but the supervisor did not enquire as to its contents.  A short time later she received a call from the owner who asked her to ring the claimant and find out what was in the cup.  She called him back after phoning the claimant and confirmed what was in the cup.  He asked her to find cover for the claimant’s shift the next day.  She told him that the roster was MS’s role.  The claimant had said to her that she would pay for the cleaner but the witness did not get an opportunity to relate this to the owner during the phone call.  The claimant phoned that night as she was worried.  They discussed her concerns.  The witness had no further involvement.  She explained that staff members could take tea and coffee free of charge at work but nothing else.

The admin assistant (MS) gave evidence.  She manages the roster and has a supervisory role.  She had noticed the reduced price yogurt sale/purchase in 2011.  The yogurts were due out of date the next day but had not been reduced.  She recalled that the owner said he would ‘sack’ the claimant and her colleague if they were caught doing it again.  

On Saturday 26^th October 2013 the owner came to her office and asked if she could do without the claimant on the roster if he took her off.  She got cover for the next day.  She rang the claimant to tell her not to come in.  She confirmed to the claimant that she was being taken off the roster and agreed that it was because of the oven cleaner.  The claimant asked for the owner’s phone number.  The witness asked the claimant to come to the office on Tuesday to speak to DC.  The claimant asked when she could get her P45 and the witness repeated that she should come in on Tuesday.  She rang DC and told her what had happened and that she had arranged for the claimant to come in on Tuesday to meet her.  She did not dismiss the claimant.

The witness was cross-examined.  She understood that being taken off the roster was a suspension which came under DC’s remit and so she organised a meeting with her.  She could not say what the purpose of the meeting might be for; just to let her know she was off the roster.  She was not aware of the owner having phoned the claimant directly.  She relayed the information.  She did not know if the claimant was being permanently removed from the roster.  She organised the meeting on her own initiative.  She thought the claimant would need follow up and the company too.

The office manager (DC) gave evidence.  She was not on shift when MS phoned her on Saturday 26^th October 2013.  MS told her that she had asked the claimant to come to a meeting on the following Tuesday morning.  DC came in especially to see her but the claimant did not arrive.  Midmorning the claimant rang to enquire about her P45.  She phoned the owner and told him that the claimant had sought her P45 and he said if she wanted it to issue it.  She calculated her holiday pay and wages and left that sum and the P45 for the claimant to collect.  When she received a Social Welfare form for the claimant she ticked that she had left work voluntarily.  The claimant phoned looking for a letter stating that she had been dismissed and DC told her that she had not been dismissed.

The witness was cross-examined.  She did not discuss the proposed Tuesday meeting with the owner.  She thought they would discuss her taking the oven cleaner and being taken off the roster.  She spoke to him when the claimant requested her P45.  She did not delve into why the claimant wanted her P45.  It was normal practice to request a resignation letter but on this occasion the claimant asked for her P45 without mentioning resignation.

The owner did not appear at the hearing to give evidence.

Determination:

The claimant, who was not a native English speaker, believed she was dismissed.  There were two varying descriptions of the telephone call on Saturday 26^th October.  The owner of the respondent company instructed MS to remove the claimant from the roster but made no other direction.  He did not give evidence to the Tribunal.

The Tribunal finds that it is clear that the respondent, through its owner, had made a decision to remove the claimant from the roster for the foreseeable future without clarifying to her, as was its responsibility, that she would be subject to an investigative or disciplinary meeting.  This clarification could have been by letter, email or even text message.  In such circumstances the Tribunal finds that the claimant was dismissed.  The Tribunal finds that the dismissal was unfair.  In particular, even if the minor infraction in relation to the oven cleaner was going to be considered for sanction, there should have been a transparent process in accordance with fair procedures.  This did not happen.

In all the circumstances the Tribunal awards the claimant €12,500 (twelve thousand five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.

The Tribunal awards €680.00 (six hundred and eighty euro) in respect of two weeks’ pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)